Statement by Mr. MA Xinmin, Chinese Delegate, at the Sixth Committee of the 62nd Session of the UN General Assembly on Item 84 "Consideration of Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in the Case of Such Harm"

New York, 23 October 2007

2007/10/23

Mr. Chairman,

Prevention and settlement of transboundary harm from hazardous activities represent a new field of the law on State responsibility. The unremitting efforts of the International Law Commission culminated in the completion of the Draft Articles on Transboundary Harm from Hazardous Activities and the Draft Principles on the Allocation of Losses in the Case of Transboundary Harm Arising out of Hazardous Activities, which on the basis of the summary and further development of existing international treaty rules and national practices, made stipulations for the prevention of transboundary harm and the allocation of losses. The Chinese delegation wishes to express its appreciation to successive Special Rapporteurs and the members of the ILC for their work and contributions in this regard.

The Chinese delegation is of the view that these two documents exemplify the progressive development of the relevant rules of international law. They have supplemented the current system of State responsibility and represent the "lex ferenda" that states should follow. We believe that the provisions contained therein will help reduce or prevent the occurrence of transboundary harms arising out of hazardous activities and will be of reference value to states in dealing with questions relating to transboundary harm.

Mr. Chairman,

Since my delegation already stated its views before in this committee on these two documents, I would like to make only two supplementary points:

First, the articles on definition of both documents define "state of origin" as the state on whose territories or other places under whose jurisdiction or control the hazardous activities are planned or carried out. In our view, using territories or places under the practical jurisdiction or control of a state as the sole criterion to define "state of origin" is not totally fair or reasonable. We would like to suggest the inclusion as elements to be taken into account when defining the state of origin the state of nationality of the operator, the host state of the major part of the operator's business and the host state of the entity that commands or controls the relevant operations.

Secondly, we suggest adding provisions of exception or exemption to the obligation of prevention in the Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities. For example, in cases of force majeure such as natural disaster or armed conflict, the state of origin can be exempted from the relevant prevention obligations or the relevant State responsibilities.

Mr. Chairman,

On the final form of these two documents, the ILC suggested that Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities be made into an international convention and that the General Assembly endorse the Draft Principles on the Allocation of the Losses Arising out Hazardous Activities and urge for its implementation by member states. In our view, since they contain provisions concerning two stages that are involved in transboundary harm, both documents can take the form of a GA resolution or a GA declaration or its annex to be gradually fleshed out by state practices. When conditions are ripe, we can consider formulating an international convention on the basis of the Draft Articles or Draft Principles.

Mr. Chairman,

As the largest developing country with vast territory in the world and one of the countries with the most continental neighboring countries, China faces great risks of transboundary harm from hazardous activities together with its neighbors. It has been the consistent view of the Chinese government that addressing transboundary harm from hazardous activities requires wide international and regional cooperation and joint response. On its part, the Chinese government has made a lot of efforts in handling appropriately the prevention of transboundary harm from hazardous activities and the allocation of losses.

China is a responsible country. Our government sticks to the path of sustainable development, steadfastly pursues the policy of reducing resources consumption and preventing environmental pollution, and works energetically to build a society that is resource-efficient and environment-friendly. We will as always join the efforts of other members of the international community in making our own contribution to the strengthening and perfection of international legislation on the prevention of transboundary harm from hazardous activities and compensation for such harm.